« PředchozíPokračovat »
may assign the right or privilege of taking a copyright independently of the transfer of the copyrightable thing itself, as in the case of paintings or other works of art, where the original work may be sold to one person and the copyright to another or reserved to the artist.93 It is the intangible intellectual property right, not the physical embodiment of it, which must be assigned to confer a right to obtain copyright by the assignee.94 Of course, where the author himself, for any reason, has no right to obtain a copyright, he cannot confer such right on his assignee.
 E. Executors and Administrators.96 The common-law right which an author has in his intellectual productions is personal property which on his death vests in his executors and administrators.97 Under the statute, the executor or administrator of the author or proprietor of copyrightable matter is
to acquire the copyright, and I see no reason why an alien friend should not have this right." Jefferys V. Boosey, 4 H. L. Cas. 815, 853, 10 Reprint 681 (per Crompton, J.).
92. Bong v. Alfred S. Campbell Art Co.. 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126; American Tobacco Co. v. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595 [aff 146 Fed. 375, 76 CCA 647]; Werckmeister v. American Lith. Co., 142 Fed. 827; Werckmeister v. Pierce, etc., Mfg. Co., 63 Fed. 445 [rev on other grounds 72 Fed. 54, 18 CCA 431]; Macmillan v. Dent,  1 Ch. 107, 3 BRC 647.
"This statute means to give to the assigns of the original owner of the right to copyright an article the right to take out the copyright secured by the statute, independently of the ownership of the article itself." American Tobacco Co. V. Werckmeister, 207 U. S. 284, 299, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595 [quot Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126].
Common-law rights separated from physical object see supra §§ 5. 33. 93. See cases supra note 92. 94. Bong v. Alfred S. Campbell Art. Co., 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126 [aff 155 Fed. 116. 83 CCA 576]. See cases supra note 92.
[a] "An assignee within the meaning of the statute is one who receives a transfer, not necessarily of the painting but of the right to multiply copies of it. And such right does not depend alone upon the statute, as contended by plaintiff, but is a right derived from the painter and secured by the statute to the assignee of the painter's right." Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 246, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126 [aff 155 Fed. 116, 83 CCA 576].
[b] Statutory definition.-"The word 'assigns' shall be construed to mean and include every Person in whom the Interest of an Author in Copyright shall be vested, whether derived from such Author before or after the Publication of any Book, and whether acquired by Sale, Gift, Bequest, or by Operation of Law, or otherwise." St. 5 & 6 Vict. c 45 § 2. 95. Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126; Banks v. Manchester, 128 U. S. 244. 9 SCt 36, 32 L. ed. 425 [aff 23 Fed. 143]; Yuengling v. Schile, 12 Fed. 97, 20 Blatchf. 452; Koppel v. Downing, 11 App. (D. C.) 93.
expressly authorized to obtain a copyright therefor. In England, under the act of 1842, the copyright in a book published after the author's death was in the proprietor of the author's manuscript from which such book was first published, and his assigns. Under the act of 1911, ownership of the author's manuscript of an unpublished work under a testamentary disposition made by the author is prima facie proof of the copyright being with the owner of the manuscript.1
[§ 156] F. Trustees. While no express provision is made therefor in the statute, there seems to be little doubt but that a person who is not the author or beneficial proprietor of a work may take out the copyright in his own name and hold it in trust for the rightful owner, provided he acts with the authority, express or implied, of the actual owner;2 and a court of equity may compel an assignment to
[a] Illustration. The judge who, in his judicial capacity, prepares the headnotes, statement of the case, and opinion cannot be regarded as their author or proprietor within the provisions of Rev St. $$ 4952. 4954, so as to confer on the state or any
other person, by assignment, any title sufficient to authorize a copyright to it or him as the assignee of the author or proprietor. Banks v. Manchester, 128 U. S. 244, 9 SCt 36, 32 L. ed. 425.
Nonresident alien authors see infra
96. Succession to copyright on death of proprietor see infra § 254. 97. See supra § 5.
98. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 8); U. S. Rev. St. § 4952; Folsom v. Marsh, 9 F. Cas. No. 4,901, 2 Story 100.
99. Copyright Act, 1842 (5 & 6 Vict. c 45 § 3); Macmillan v. Dent,  1 Ch. 107, 118, 3 BRC 647 (where Vaughan Williams, L. J., said: "Whatever were the common law rights of authors before publication, the necessary effect of s. 3 of the Act of 1842 is to determine those rights and to transfer them to the proprietor of the author's manuscript").
"On the death of the author of any unpublished literary composition, the owner of the author's manuscript, or his assignee, has the right of withholding publication, or of acquiring copyright for the statutory period by publication." 8 Halsbury L. Eng. p 137.
[a] Where more than one manuscript exists, the owner of the author's manuscript from which the work is first published is entitled to the copyright. Copyright Act, 1842 (5 & 6 Vict. c 45 § 3); Macmillan v. Dent,  1 Ch. 107, 3 BRC 647.
[b] Letters published after death of author.-Under the English Copyright Act of 1842 the copyright of a letter published after the death of the author is vested in the person owning the actual letter and not in the representatives of the author. Macmillan v. Dent,  1 Ch. 101, 3 AnnCas 1113 [aff  1 Ch. 107, 3 BRC 6471.
proof of the copyright being in the owner of the manuscript, and unless there has been a disposition by will, it is submitted that on the death of the author the copyright in such work vests in his personal representatives, and even a disposition by will is not to be taken as conclusive proof that the copyright in such work is in the person in whose favour such disposition is made. See, further, as to posthumous work, Copyright Act, 1911 (1 & 2 Geo. 5, c. 46), s. 17 (1), (2), and ibid., s. 3, proviso." Halsbury L. Eng. Suppl. (1917) p 360.
[b] Letters.-The alteration introduced by the Copyright Act, 1911 (1 & 2 Geo. 5, c. 46), in the law relating to copyright in letters appears to be limited to the case of letters written by a deceased person. Formerly letters of a deceased person might be published by the owner of the author's manuscript (Macmillan v. Dent,  1 Ch. 107. 3 BRC 647) unless there were circumstances in which their publication could have been restrained by the personal representatives of the deceased author (Thompson v. Stanhope, Ambl. 737, 27 Reprint 476; Lytton v. Devey, 54 L. J. Ch. 293). See also Ashburton v. Pape,  2 Ch. 469. Letters that have not been published during the author's lifetime are not posthumous works, and the copyright in them belongs to the author's personal representatives; see Copyright Act, 1911 (1 & 2 Geo. 5, c. 46), s. 17 (1), (2). and the proviso to ibid., s. 3." Halsbury L. Eng. Suppl. (1917) p 360.
2. Harms v. Stern, 229 Fed. 42. 145 CCA 2; Press Pub. Co. v. Falk, 59 Fed. 324; Black v. Henry G. Allen Co., 42 Fed. 618, 9 LRA 433, 56 Fed. 764; Carte V. Evans, 27 Fed. 861: Mackaye v. Mallory, 12 Fed. 328; Lawrence v. Dana, 15 F. Cas. No. 8.136, 4 Cliff. 1; Little v. Gould, 15 F. Cas. No. 8.394, 2 Blatchf. 165; Pierpont v. Fowle, 19 F. Cas. No. 11,152, 2 Woodb. & M. 23; Pulte v. Derby, 20 F. Cas. No. 11,465, 5 McLean 328; Carter v. Bailey, 64 Me. 458. 18 AmR 273; Petty v. Taylor,  1 Ch. 465; London Printing. etc., Alliance. Ltd. v. Cox.  3 Ch. 291; Hazlitt v. Templeman, 13 L. T. Ren. N. S. 593; Sweet v. Cater, 11 Sim. 572. 34 EngCh 572, 59 Reprint 994 (equitable assignment).
[a] The legal title to a copyright vests in the person in whose name it is taken out, but it may be held by him in trust for the true owner. Harms v. Stern, 229 Fed. 42. 145 CCA 2.
[c] Publication of private and confidential letters by the owner of the manuscript letters may be restrained on application of the personal representatives of the deceased writer. Macmillan v. Dent,  1 Ch. 107, 3 BRC 647; Thompson v. Stanhope, Ambl. 737. 27 Reprint 476; Lytton v. Devey, 54 L. J. Ch. 293. See also supra § 32.
1. St. 1 & 2 Geo. V c 46 § 17 (2). [a] "The ownership of an author's manuscript after his death, where such ownership has been acquired under a testamentary disposition made by the author, and the manuscript is of a work which has not been published, nor performed in public, nor delivered in public. is prima facie proof of the copyright being with the owner of the manuscript (Copyright Act, 1911 (1 & 2 Geo. 5. c. 46), s. 17 (2)). The change introduced in the law is that mere possession of the manuscript is no
[b] Title of assignee. The party to whom an assignment is made. whether for the benefit of another or not, holds the legal interest in the work as assignee of the author, and comes, therefore, within the very words of the law entitling him to the copyright. Whether a third person
the beneficial owner. But he must be the legal owner and trustee ;* a mere agent or nominee of the proprietor may not enter a copyright in his own name. The right to copyright in unpublished works probably does not pass to a trustee in bankruptcy, as this would involve a right to publish without the consent of the author.
 G. Citizenship and Residence as Affecting Right-1. Under United States Statutes-a. Citizens and Residents. Prior to the act of March 3, 1901, the benefit of the copyright laws of the United States was limited solely to citizens and residents of the United States. Nonresident aliens could not obtain copyright. But no distinction ever has been made between citizens and resident aliens.10 An alien domiciled in the United States is entitled to copyright equally with a citizen; no reciprocity or proclamation is necessary, or ever has been necessary." In order to constitute a person a resident of the United States, within the meaning of the term as used in the copyright laws, it is necessary that he shall take up his residence in this country with the intention of remaining and making it his home.12 Such residence, existing at the time the copyright is initiated by performance of the statutory requirements,13 is sufficient to support the copyright, notwithstanding a subsequent change of intention and actual removal from the United States.14 A state is neither a citizen nor a resident of the
has an equitable interest in the work, derived from the author or from the legal assignment, is a question between those parties, in respect to which the public interest or policy is not at all concerned. Lawrence v. Dana, 15 F. Cas. No. 8,136, 4 Cliff. 1. [c] Where a publisher takes a copyright in his own name, with the knowledge and acquiescence of the author, he is the lawful owner, subject to the condition of accounting to the author pursuant to the contract. Pulte v. Derby, 20 F. Cas. No. 11,465, 5 McLean 328.
[d] Gratuitous services.-Lawrence gave his services gratuitously to Wheaton, the proprietor of a book, in preparing new editions with notes and other additions of his own composition. Wheaton took out a copyright of said editions. By the terms of a contract between them, Wheaton was to make a formal agreement not to use Lawrence's notes in a subsequent edition without his consent, and gave Lawrence the right to make any use of his notes that he wished. It was held that Lawrence was the equitable owner of said notes, and that Wheaton was the legal owner, and the proper person to take out the copyright. Lawrence v. Dana, 15 F. Cas. No. 8,136, 4 Cliff. 1.
[e] "A trustee in whom a copyright is vested may be registered as the owner, and may sue in that character; but it is impossible for one person to be the owner and another person to be on the register, and for those two persons successfully to sue." London Printing, etc., Alliance, Ltd. v. Cox,  3 Ch. 291, 303.
3. Lawrence v. Dana, 14 F. Cas. No. 8,136, 4 Cliff. 1; Little v. Gould, 15 F. Cas No. 8,394, 2 Blatchf. 165; Pulte v. Derby, 20 F. Cas. No. 11,465, 5 McLean 328; Hazlitt v. Templeman, 13 L. T. Rep. N. S. 595.
4. Koppel v. Downing, 11 App. (D. C.) 93 (holding that the real owner of a manuscript which has been entered for copyright by another cannot, by a retroactive adoption and for the purpose of bringing suit for infringement, constitute the person making the entry a trustee).
5. Petty v. Taylor,  1 Ch. 465.
United States, and therefore could not obtain a copyright so long as that right was limited to citizens or residents." But since the removal of that restriction no reason appears why a state may not be entitled to copyright as a "proprietor," or even as an "author," under the provision that the word "author" shall include an employer in the case of works made for hire.16
 b. Nonresident Aliens.
This restriction of copyright to citizens and residents of the United States was removed by the amendatory act of 1891 which in general terms, on compliance with the provisions of the statute, gave copyright to any author, inventor, designer, or proprietor of copyrightable subject matter, regardless of citizenship or residence, but subject to the following express condition, namely: "That this act shall only apply to a citizen or subject of a foreign state or nation when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States of America may, at its pleasure, become a party to such agreement. The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation
§ 1. Citizen see Citizens § 1. Domicile see Domicile [14 Cyc 8331. Resident see Resident [34 Cyc 1655]. International copyright see infra
8. Rev. St. § 4952; Act July 8, 1870 (16 St. at L. 198 c 230 § 86); Act Febr. 3, 1831 (4 St. at L. 436 c 16 § 1); Act April 29, 1802 (2 St. at L. 171 c 36 § 2); Act March 31, 1790 (1 St. at L. 124 c 15 § 1); Banks v. Manchester, 128 U. S. 244, 9 SCt 36, 32 L. ed. 425.
[a] Express exclusion of nonresident aliens.-Since 1831, and until the act of 1891, the successive statutes have contained an express declaration that nothing therein contained should be construed to prohibit the printing, publication, importation, or sale of any work composed or made by any person not a citizen of the United States nor resident therein. Act Febr. 3, 1831 (4 St. at L. 436 c 16 § 8); Act July 8, 1870 (16 St. at L. 198 c 230 § 103); Rev. St. § 4971.
9. Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126 [aff 155 Fed. 116, 83 CCA 576]; Harms v. Stern, 229 Fed. 42, 49, 145 CCA 2; Bentley v. Tibbals, 223 Fed. 247, 138 CCA 489; West Pub. Co. V. Edward Thompson Co., 176 Fed. 833, 100 CCA 303 [mod 169 Fed. 833]; Fraser v. Yack, 116 Fed. 285, 53 CCA 563; Yuengling v. Schile, 12 Fed. 97, 20 Blatchf. 452; Benn v. Leclercq, 3 F. Cas. No. 1,308; Boucicault v. Wood, 3 F. Cas. No. 1,693, 2 Biss. 34; Carey v. Collier, 5 F. Cas. No. 2,400; Keene v. Wheatley, 14 F. Cas. No. 7,644; Sheldon V. Houghton, 21 F. Cas. No. 12,748, 5 Blatchf. 285; Shook v. Rankin, 21 F. Cas. No. 12,804, 6 Biss. 477; Frohman v. Ferris, 238 Ill. 430. 87 NE 327, 128 AmSR 135, 43 LRANS 639 [aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492].
10. See statutory provisions supra note 8.
11. Act March 4, 1909 (35 St. at L. 1075 c 320 § 8).
12. Boucicault v. Wood, 3 F. Cas. No. 1.693, 2 Biss. 34; Carey v. Collier, 5 F. Cas. No. 2.400.
declaration An officer of the British navy, traveling through the United States, and considering himself a British sub
6. See supra § 7.
7. Definitions of: Alien see Aliens ject, during his stay filed a declara
tion of intention to become a citizen. It appeared that at the time when trouble with Canada seemed imminent he had offered his services to the province. It was held that he was not a resident of the United States within the meaning of the Copyright Act of 1831. Carey v. Collier, 5 F. Cas. No. 2,400.
13. See infra § 167 et seq.
[a] Under the act of 1909 (1) copyright is initiated by publication, with notice of copyright, in the case of published works. Act March 4, 1909 (35 St. at L. 1075 c 320 § 9). (2) In the case of unpublished works, copyright is initiated by making the specified deposits in the copyright office with claim of copyright. Act March 4, 1909 (35 St. at L. 1075 c 320 § 11). See infra § 171 et seq.
14. Boucicault v. Wood, 3 F. Cas. No. 1,693, 2 Biss. 34.
15. Banks v. Manchester, 128 U. S. 244, 9 SCt 36, 32 L. ed. 425 [aff 23 Fed. 143].
"The State cannot properly be called a citizen of the United States or a resident therein, nor could it ever be in a condition to fall within the description in § 4952, or § 4954. The copyright claimed to have been taken out by Mr. De Witt in the present case, being a copyright 'for the State,' is to be regarded as if it had been a copyright taken out in the name of the State. Whether the State could take out a copyright for itself, or could enjoy the benefit of one taken out by an individual for it, as the assignee of a citizen of the United States or a resident therein, who should be the author of a book, is a question not involved in the present case, and we refrain from considering it and from considering any other question than the one above indicated." Banks V. Manchester, 128 U. S. 244, 253, 9 SCt 36, 32 L. ed. 425 [aff 23 Fed. 143].
16. Act March 4, 1909 (35 St. at L. 1075 c 320 §§ 8, 62).
17. Act March 3, 1891 (26 St. at L. 1106 c 565 § 1); Bentley v. Tibbals, 223 Fed. 247, 138 CCA 489; West Pub. Co. v. Edward Thompson Co., 176 Fed. 833, 835, 100 CCA 303 [mod 169 Fed. 833]; Hervieu v. J. S. Ogilvie Pub. Co., 169 Fed. 978; Harper v. Donohue, 144 Fed. 491 [aff 146 Fed. 1023 mem, 76 CCA 678 mem]; Frohman v. Ferris, 238 Ill. 430, 87 NE
made from time to time as the purposes of this act may require.'' 18 These provisions were carried forward, without substantial change, into the Copyright Act of 1909,19 which is the present law. This act further specially provides that the provisions as to devices for the mechanical reproduction of music shall not include the works of a foreign author or composer unless the foreign state or nation of which he is a citizen grants like rights to citizens of the United States.2 20 Under these statutes, while the proclamation of the president declaring the existence of the reciprocal conditions
327, 128 AmSR 135, 43 LRANS 639 | particular right was concerned, was
"The provision that books of foreign authors 'heretofore' published of which new editions shall thereafter appear are entitled to copyright was enacted by Act March 3, 1891, c. 565, 26 Stat. 1110 (U. S. Comp. St. 1901, p. 3417), section 13 of which extended the benefit of our copyright laws upon certain conditions to foreigners. Prior to that act no foreign author or assignee of a foreign author could avail of our copyright law. Yuengling v. Schile, 12 Fed. 97, 20 Blatchf. 452; Fraser v. Yack, 116 Fed. 285, 53 CCA 563." West Pub. Co. v. Edward Thompson Co., supra.
specified does not create the right of nonresident alien authors to enjoy the privileges of the copyright laws,21 but is only the evidence of the conditions under which those rights and privileges may be exercised,22 yet it is the conclusive and only evidence admissible on that point,23 and such proclamation is a necessary condition precedent to the exercise of any rights under the copyright law by a nonresident alien,24 including the right of controlling the parts of instruments serving to reproduce mechanically a musical work.25 A foreign author or proprietor, not domiciled within the United States
18. Act March 3, 1891 (26 St. at L. 1106 c 565 § 13); 29 Op. Atty.Gen. (Wickersham) 209; Frohman v. Ferris, 238 Ill. 430, 87 NE 327, 128 AmSR 135, 43 LRANS 639 [aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492].
[a] Reciprocity contemplated-The statute contemplates a reciprocity of rights. Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126.
21. 28 Op. Atty.-Gen. (Wickersham) 222.
[a] Rule applied.-"Germany having complied with one or more of the conditions set forth in section 8, subsection (b), on or before July 1, 1909, at any time thereafter and independent of the President's proclamation, a German citizen could acquire the rights declared by the act of March 3, 1909, by a compliance with its terms. It is true that, in the absence of the President's proclamation, he could not obtain a registration of his claim to copyright; but under this statute registration is not a necessary prerequisite to the existence of the rights and privileges of copyright, as they are vested by a compliance with the conditions of the statute by the author or composer.' 28 Op. Atty.-Gen. (Fowler) 64, 70.
mine the conditions upon which they might depend than the President?" Bong v. Álfred S. Campbell Art Co., 214 U. S. 236, 247, 248, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126.
23. Chappell v. Fields, 210 Fed. 864, 127 CCA 448; 28 Op. Atty.-Gen. (Wickersham) 222.
22. 28 Op. Atty.-Gen.
24. Bong v. Alfred S. Campbell
25. 29 Op. Atty.-Gen. (Fowler) 64. [a] Proclamation as to mechanical musical rights.-"Does the provision at the end of section 8, requiring the President to determine the 'reciprocal conditions aforesaid,' by proclamation, apply to the restriction upon aliens contained in section 1 (e)? This presents another of the many difficult questions of construction which have arisen in the enforcement of this act. It must be conceded that this provision is remote from section 1 (e), that it relates directly to the preceding provisions in section 8 and that it contains nothing which necessarily requires its extension to the condition expressed in section 1 (e). However, here, as in every question of statutory construc tion, it is necessary to consider all parts of the act relating to the sub(Wicker-ject under consideration, and to determine therefrom as nearly as possible the legislative intent. That there is a close relationship in the subject matter of section 1 (e) and of the proviso to section 8, is apparent. The latter relates to the conditions upon which an alien may acquire the general privileges under the act, while the former specifies a particular condition upon which an [a] Rule applied.-"It is next con- alien may acquire the right of contended that Hernandez, as a subject trolling the parts of instruments of Peru, was entitled to a statutory serving to reproduce mechanically a copyright in his own right, because, musical work. This condition is in as it is further contended, Peru be- a way dependent upon the conditions longs to the Montevideo International set forth in section 8, inasmuch as it Union. This contention is based on may be complied with, and yet the the words of § 13, [26 Stat. at L. right to control the parts of the in1110], which gives the right of copy- struments mentioned could not be right to a citizen or subject of a acquired unless some one of the conforeign state or nation when such ditions prescribed in the latter secstate or nation is a party to an in- tion is also met; that is, the conternational agreement which pro-dition relating to this particular matvides for reciprocity in the granting ter is added to those set forth in of copyright, by the terms of which section 8. It is reciprocal in its naagreement the United States of ture, just as those in class (b) of America may, at its pleasure, become section 8 are reciprocal. Every reaa party to such agreement.' If this son which prompted the insertion of were all there were in the statute, the clause in section 8 relating to the contention of the plaintiff might the proclamation by the President, have some foundation. The statute, applies equally to the proviso in sechowever, provides that the existence tion 1 (e). Without the specification of such condition 'shall be deter- of some method by which it may be mined by the President of the United determined whether the laws of a States by proclamation, made from foreign country comply with this time to time, as the purposes' of the particular condition, the general pub'act may require.' It is insisted, lic could possess no adequate knowlhowever, that this provision is di- edge as to whether a copyright of a rectory and a right is conferred in- musical composition carried with it dependent of the action of the Presi- the protection of the right declared dent, his proclamation being only a therein, and the proof of such right convenient mode of proving the fact. in actions for infringement would We cannot concur in this view, nor often be uncertain and difficult to do the cases cited by plaintiff sus- obtain. There can be but little doubt tain it. It is admitted that the that Congress intended that the redecision of the State Department is quirement that the existence of the adverse to the contention, and, it is reciprocal conditions aforesaid' shall asserted by the defendant and not be determined by the President of denied by plaintiff, that the Librarian the United States, should apply to of Congress has always construed the the reciprocal requirements specified statutes as denying to citizens of in section 1 (e), and that it was not Peru copyright protection. We think, there expressed because it was asbesides, the statute is clear and sumed that the language of the conmakes the President's proclamation cluding clause of section 8 implied a condition of the right. And there that all reciprocal conditions upon was reason for it. The statute con- which the right of foreign authors templated a reciprocity of rights, and or composers depend, should be dewhat officer is better able to deter- termined and proclaimed by the
19. Act March 4, 1909 (35 St. at L. 1075 c 320 § 8) (which reads as follows: "Sec. 8. That the author or proprietor of any work made the subject of copyright by this Act, or his executors, administrators, or assigns, shall have copyright for such work under the conditions and for the terms specified in this Act: Provided, however, That the copyright secured by this Act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only: (a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or (b) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such foreign author under this Act or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto. The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time, as the purposes of this Act may require"); Bentley v. Tibbals, 223 Fed. 247, 138 CCA 489. 20. Act March 4, 1909 (35 St. at L. 1075 c 320 § 1(e)). [a] Rule applied.-"With reference to the fourth question, it is clear that the right specified in the proviso to section 1 (e) could not be acquired by any German citizen prior to September 9, 1910. The reciprocal condition therein provided was a necessary prerequisite to the acquiring of the right mentioned. Previous to that date the condition of the German citizen, in so far as that
at the time of the first publication of his work, is before issuance of the presidential proclamation may
27. 28 Op. Atty.-Gen. (Wicker-
quired in the statute have been com-
would be entitled to avail themselves
President. I hold, therefore, that it is the duty of the President to determine and proclaim what foreign countries grant to the citizens of the United States rights similar to those specified in the provisions of section 1 (e)." 29 Op. Atty.-Gen. (Fowler) 64, 68.
26. 28 Op. Atty.-Gen. (Wickersham) 222.
Tal Reason for rule.-"The question is whether, if publication as to certain foreign countries was, before the passage of the act of 1909, made by the President, as required by the act of 1891, it is necessary for another publication to be made under said latter act before the benefits conferred thereby can be enjoyed by an author or proprietor who is a citizen of a foreign state or nation, and who was not domiciled within the United States at the time of the first publication of his work. The act of 1909 not only embraced all, or substantially all, the principal features of the previous copyright laws, but it adds several material provisions thereto. For illustration, in paragraph (e) of the first section there are found provisions with reference to the reproduction of music upon mechanical instruments, etc., which nowhere appear in the previous laws. Since, therefore, material and important provisions have, by this act, been added to the copyright laws, and all of the old provisions which remain in force are embraced therein, and since all rights and privileges which may now be enjoyed under the copyright laws must be secured under the provisions of this act and not of any former laws, it is fair to presume that, when Congress provided by express terms that the existence of certain conditions should be determined and proclamation thereof made by the President before foreign authors or proprietors can enjoy the privileges of a copyright secured by this act, a determination and proclamation under this act was contemplated, and that a previous proclamation under a former act is not sufficient. This conclusion is further strengthened by the fact that there is a material difference in the requirements of the present law and that of 1891. By that act the conditions under which a foreign citizen or subject might procure the rights and privileges of the copyright law were that the foreign state or nation of which he was a citizen or subject permit to citizens of the United States the benefit of copyright on substantially the same basis as its own citizens or subjects, or that such foreign state or nation be a party to an international agreement which provides for reciprocity in the matter of copyright, by the terms of which agreement the United States, at its pleasure, might become a party thereto; while in the last act. to these conditions is added the further one in the alternative, that such foreign country afford to citizens of the United States copyright protection substantially equal to the protection secured to the foreign author under this act, or by treaty; and, as above shown, with reference to the reproduction of music by mechanical instruments. rights similar to those given by this act must be granted to citizens of the United States. And. since this last-mentioned condition was not in the previous laws, a proclamation thereunder by the President can be no evidence that it is com
Numerous proclamations establishing reciprocal copyright relations between the United States and various foreign nations have been made from time to time.31 Such proclamations continue in force until withdrawn by new proclamations, notwithstanding changes in the law of the foreign countries to which such proclamations relate.32 The act of 1891 frequently has been termed the "International Copyright Act," but this is a misnomer; the act in no true sense provided for an international copyright. The copyright which, in conformity with its provisions, a citizen may obtain in a foreign country, or which a nonresident alien may obtain in this country, is strictly national and limited to the territorial limits of the sovereignty which grants it. Separate and independent copyrights must be obtained in the several countries, in accordance with their respective laws. Merely the privilege of obtaining such copyrights is secured. International copyright in any real sense means more than this.33
 c. Residents of Hawaii, Porto Rico, and Philippine Islands. The application of the copyright laws to the outlying territorial possessions of the United States, particularly the Philippine Islands, may admit of some question, except so far as the law has been expressly extended to them.34 But aside from this, all such territorial possessions forthwith on acquisition by the United States ceased to be foreign states or nations, and as both the act of 1891 and the act of 1909 extend the privilege of copyright to all persons irrespective of nationality, except "a citizen or subject of a foreign state or nation" which does not grant reciprocal privileges to citizens of the United States,35 the inhabi
30. 29 Op. Atty.-Gen. (Wickersham) 209, 210; 29 Op. Atty.-Gen. (Fowler) 64.
"The date when the reciprocal condition was actually met by the laws of Cuba is the one which should be inserted in the proclamation. (See my letter to you of May 6, 1911, 29 Opinions 64.) From the information contained in the letters transmitted to me, it does not affirmatively appear that this reciprocal condition existed prior to May 29, 1911. This is the date, then, to appear in the proclamation, unless you have or can obtain information showing that such condition actually existed at an earlier day, in which event such earlier date is the one to be stated in the proclamation." 29 Op. Atty.Gen. (Wickersham) 209, 210.
tants of such territorial possessions are entitled to avail themselves of the privileges of the copyright laws of the United States, and to receive protection thereunder, at least within the states of the Union.36
the foreign country brought itself same basis as to her own citizens, | 20 Blatchf. 452.
33. See infra § 453.
36. 25 Op. Atty.-Gen. (Moody) 179
31. [a] Presidential copyright proclamations have been issued securing copyright privileges in the United States to the citizens or subjects of the following countries: Austria, Belgium, Chile, China, Costa Rica, Cuba, Denmark, France, Germany, Great Britain and her possessions, Guatemala, Honduras, Hungary, Italy, Japan, Luxemburg, Mexico, Netherlands (Holland) and possessions, Nicaragua, Norway, Portugal, Salvador, Spain, Sweden, Switzerland, and Tunis. See infra § 454. 32. Chappell v. Fields, 210 Fed. 864, 127 CCA 448.
 d. Assigns. Prior to the act of 1891 extending the privilege of copyright to aliens under conditions securing reciprocity, the assignee of a nonresident alien, although himself a citizen of the United States, could obtain no valid copyright by compliance with the requirements of the statutes for obtaining their protection,37 because his assignor had no right to assign.38 For a like reason, even since the act of 1891, a citizen of a foreign country with which copyright relations have not been established by proclamation of the president cannot convey to an assignee the right to obtain a copyright, and this is true, although such assignee is a citizen of the United States,10 or of a country with which international copyright relations have been established." But an assignee of a citizen of a country with which copyright relations have been established by proclamation12 is entitled to obtain a copyright."
 2. Under English Statutes. In England the statute of 1911 makes a distinction between published and unpublished works with regard to the citizenship and residence of the author. In the case of published works, copyright subsists and belongs to the author, provided only the work was "first published within such parts of His Majesty's dominions" to which the act extends," and subject to this condition a nonresident alien author is entitled to a copyright under this statute. In the case of unpublished works, copyright subsists only if "the author was at the date of the making of the work a British subject or resident within such parts
37. West Pub. Co. V. Edward Thompson Co., 176 Fed. 833, 100 CCA 303 [mod 169 Fed. 8331; Fraser v. Yack, 116 Fed. 285, 53 CCA 563; Yuengling v. Schile, 12 Fed. 97, 20 Blatchf. 452; Keene v. Wheatley, 14 F. Cas. No. 7,644.
See supra § 154.
"It has been held that when a person is the author or proprietor of a painting, and has the right under our statute to secure a copyright on the same, he may separate the two, selling the right to take out a copyright to one person, while he himself retains the original painting, or sells it, without copyright privileges. to another person. We know of no authority which holds that when a person is the author or owner of a painting, but has no right under our statutes to secure a copyright here, he may nevertheless, while retaining the painting, convey to some one else what he does not own himself, viz., the right to take out copyright. In the absence of controlling authority we are unwilling so to hold, believing that such a construction would be judicial legislation defeating the very object which Congress, by the thirteenth section above cited, sought to obtain." Bong v. Alfred S. Campbell Art Co., 155 Fed. 116, 83 CCA 576 [aff 214 U. S. 236, 29 SCt 628, 53 L. ed. 979. 16 AnnCas 1126].
40. Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126.
41. Bong v. Alfred S. Campbell Art Co., 155 Fed. 116, 83 CCA 576 [aff 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126].
42. For list of such countries see supra § 158 note 31.
43. American Tobacco Co. v. Werckmeister, 207 U. S. 284, 28 SCt 72. 52 L. ed. 208, 12 AnnCas 595; Werckmeister v. Pierce, etc., Mfg. Co.. 63 Fed. 445 [rev 72 Fed. 54, 18 CCA 431]; Werckmeister v. American Lith. Co., 142 Fed. 827.
44. St. 1 & 2 Geo. V c 46 1 (1). 45. See infra § 221.
[a] Statute construed.-Congress, in the revision of the Copyright Act of 1870, did not intend any reversal or change of its inflexible policy, ever since the act of 1790, of protect
[a] Rule applied to British Copy-ing only native or resident authors right Act of 1911.-"April 9, 1910, and artists, and that the word "proPresident Taft issued a proclamation prietor," in § 86 of the act of 1870, stating that citizens of Great Brit- and in § 4952 of the Revised Statutes. ain are entitled to the benefit of our must be construed in the limited Copyright law, with an exception not and restricted sense in which it has material in this case. This procla- been used in every act from that of mation is conclusive evidence of the 1790 downward, namely, as the legal fact that Great Britain at that date representative of a right derived gave our citizens the benefit of her from a native resident author or arcopyright laws on substantially the tist. Yuengling v. Schile, 12 Fed. 97,